Court based mediation – will it really alleviate the burden on our courts and the cost of litigation for litigants

On Monday 1 December 2014 a pilot project came into effect in terms of which designated Magistrate's Courts in Gauteng and the North West have introduced court based mediation. This is according to Munya Gwanzura, a Director in the Dispute Resolution practice at Cliffe Dekker Hofmeyr. Gwanzura, a CEDR (UK) accredited commercial mediator, notes that a litigant will now be able to approach the Registrar in writing and request a mediation prior to instituting legal action, either by way of a summons or notice of motion. The reasons for court based mediation are many, but its foundation is based on the need to ensure that access to justice is available to all, and to alleviate the burden on our courts which are inundated with civil law suits.

Gwanzura explains that court based mediation will mean a  dispute can now be referred to mediation prior to the institution of legal proceedings or after the commencement of legal proceedings but before judgment is handed down.

“The Registrar of the court now has greater powers to convene conferences between parties to a dispute and to explore whether the parties are amenable to holding a mediation. If they are, the Registrar will assist the parties to agree the appointment of a mediator from a list of mediators to be published by the Minister of Justice & Constitutional Development. If the parties cannot agree, the Registrar can select a mediator for them. The Registrar also must assist the parties to conclude a mediation agreement and liaise with the appointed mediator to arrange a date, time and venue for the mediation. The office of the Registrar will play a vitally important administrative role in ensuring that parties actually mediate disputes,” says Gwanzura.

“A litigant can also apply to the court to have a matter mediated and the court has the power to refer the matter to the Registrar to be mediated if there is agreement from the other party. The court can also mero muto inquire from the parties whether a dispute should not be referred to mediation and whether the parties have considered mediating the dispute. This can happen any time after the commencement of a trial but before judgement is handed down,” he says.

Gwanzura notes that in all cases, the pleadings or affidavits filed will serve as statements of claim and statements of defence. If certain pleadings of affidavits have not been filed at the time that a matter is referred for mediation, parties will be required to file statements within a certain prescribed time period.

“In my experience, bringing pleadings and statements into the mediation process can be counterproductive as parties inevitably refer to their respective positions outlined in the pleadings. The mediation process is aimed at getting the parties to move from their respective corners in a safe environment that ensures and guarantees confidentiality of information shared with the mediator . The process also encourages the parties to exchange information through the mediator without fear that such information can be used against them at a later stage in litigation, if the mediation does not result in settlement. Consequently, I have always been in favour of keeping pleadings out of a mediation unless there are justifiable and necessary grounds for the pleadings to be part of a mediation. It will therefore be interesting to see how and whether the requirement to file pleadings and statements will impact the success rate of mediations held through the courts,” he notes.

Gwanzura notes that the intention is that court based mediation will be rolled out to other Magistrate's Courts and ultimately to the High Courts.

“Whether or not litigants will make use of the process is something that will have to be monitored closely. It is hoped that a database will be created to record both the number of matters in which parties agree to mediate and  the number of matters that settle successfully through the process. This information is crucial during the pilot phase of the project, as it will indicate the likely success or failure of court based mediation and  whether it will achieve the goals of ensuring access to justice for all and alleviating the burden on our courts.

“Mediation is a method of dispute resolution that I believe is effective for the resolution of even complex commercial disputes. However, its implementation into the court system must be done correctly if it is to be effective. Other  African jurisdictions like Nigeria and Rwanda have had court based mediation as part of their justice system for some time, and so it will be interesting to see how South Africa fares with its attempt to introduce the process,” Gwanzura adds.